Paul F. Walsh, Jr.
Courts Use Subjective Analysis to Trump Precedent
Two recent court decisions should send a shiver down every prosecutor’s spine—but not for the reasons you might, at first, think.
In Roper v. Simmons, the United States Supreme Court found capital punishment to be unconstitutional when applied to teenage murderers. And in Commonwealth v. DiGiambattista, the Massachusetts Supreme Judicial Court moved toward requiring electronic recording of defendants’ statements.
Regardless of what you think about the death penalty or the taping of interrogations, there is something more disturbing at work in both of these decisions. In both, the majorities abandoned all pretense of stare decisis, ignoring over two hundred years of principled decision-making and jurisprudence. In support of their positions, both courts claimed to be “instructed” by “authority” that was amorphous, arbitrary and ultimately subjective. Roper, for example, relied on “enlightened” legal trends among the so-called “leading members” of the “international community,” on an imagined “national consensus” of American public sentiment, and on (what the Court termed) “evolving standards of decency.”
In Massachusetts, the news is even worse. In DiGiambattista, the court asserted, “we recognize that some investigators prefer to lull suspects into the mistaken belief that they are having a confidential chat with a sympathetic listener.” How could the court “recognize” any such thing, given that it cited no authority for it? Instead, the majority based its ruling on pseudo-scientific “research,” on conclusions that, in the words of one commentator, are “not yet ready for prime time.” In other words, the underlying rationale of DiGiambattista has never been subjected to the Daubert test of reliability within the scientific community, the rigorous test that we prosecutors must face every time we offer an item of scientific evidence at trial.
This is no isolated phenomenon. Courts across the country are abandoning statutes and case law to substitute their own policy judgments about how they believe things ought to be. Witness Grutter v. Bollinger, the 2003 affirmative action case in which Justice Ginsburg’s concurring opinion cited as “instructive” the 1979 United Nations Convention on the Elimination of all Forms of Discrimination, a convention neither ratified nor even recognized by the United States.
Prosecutors already face many difficulties. We are the only lawyers with ethical obligations to be fair. But if fairness, like beauty, is now in the eye of the beholder, how do we uphold our obligations? If subjective analysis trumps precedent, if the latest fashions of pseudo-science and the whims of the United Nations take center stage, how can we prosecutors assure the public of the solidity and integrity of our hard-won convictions?
So we now face yet another challenge. We must use our positions, our skills as advocates and our bully pulpits to remind, not just the public, but judges as well of a fundamental truth: our laws are established on a foundation of principled decision-making, a foundation to be respected, not twisted to suit the fashion of times.
